Cady v. Commonwealth
| Decision Date | 11 August 2020 |
| Docket Number | Record No. 1595-19-4 |
| Citation | 846 S.E.2d 30,72 Va.App. 393 |
| Court | Virginia Court of Appeals |
| Parties | Mark Spencer CADY v. COMMONWEALTH of Virginia |
Cary S. Greenberg, McLean; Timothy R. Bradley (Caroline E. Costle, McLean; GreenbergCostle, PC, on briefs), for appellant.
Sharon M. Carr, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Russell, Malveaux and Senior Judge Clements
OPINION BY JUDGE MARY BENNETT MALVEAUX
Mark Spencer Cady ("appellant") was convicted in a jury trial of misdemeanor reckless driving, in violation of Code § 46.2-852. The trial court imposed a sentence of three months in jail and a $2,500 fine, following the jury's recommendation. On appeal, appellant argues that the evidence was insufficient to support his conviction. For the reasons that follow, we agree.1
BACKGROUND
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472, 813 S.E.2d 722 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608 (2016) ). In doing so, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Id. at 473, 813 S.E.2d 722.
On November 1, 2018, at approximately noon, appellant was driving to work in a Ford Fusion sedan. He was on Route 605 in Fauquier County. At the same time, Richard McElroy was driving a large, roll-off Waste Management truck in the opposite direction on the same road. McElroy characterized Route 605 as "[r]esidential and farm split," and described the weather that day as "[c]lear" with "[n]ice blue skies." As he drove, McElroy saw a large, burgundy motorcycle stopped ahead in the opposite lane, waiting to make a left turn. The motorcycle had its left turn signal on, and its front wheel was partially turned. McElroy slowed, unsure if the driver was going to turn across in front of him or wait until McElroy passed.
As McElroy made eye contact with the motorcycle's driver, later identified as Raleigh Gary Nelson,2 he noticed a Ford Fusion approaching the motorcycle from behind and "not slowing down" or swerving. McElroy saw the car hit the motorcycle. He did not hear anything before the impact of the two vehicles. McElroy testified that just a few seconds passed between when he first saw the car and when it hit the motorcycle. After the impact, Nelson's helmet hit the windshield of McElroy's truck.
McElroy braked, stopped his truck on the side of the road, and ran to the Ford Fusion.
He noticed "pieces and parts" along the roadway as he ran. The Fusion's door was open. The driver, whom McElroy identified at trial as appellant, was "dazed" and fumbling for his phone on the passenger side floorboard. Appellant looked at McElroy and asked, "What happened?" McElroy told appellant to go wait in a grassy area until police arrived.
McElroy next approached Nelson to check on him. He testified that Nelson was wearing jeans and a lightweight jacket and that he was not wearing any bright or reflective clothing. Nelson had no pulse and was not moving or breathing. Although 911 was called to assist, Nelson died as a result of his injuries sustained in the crash.
Virginia State Police Trooper Mark Brill investigated the accident. He testified it was a clear day with no obstructions in the roadway that would have prevented appellant from seeing the motorcycle. Brill also testified there was a slight dip in the road that could impact visibility for drivers traveling toward the site of the accident. However, he indicated that beyond the dip, there was a flat, unobstructed stretch of road for approximately 443 feet to Nelson's mailbox, where the impact occurred. Brill testified that Nelson was six feet four inches tall and weighed approximately 280 pounds and that seated on his motorcycle, Nelson's helmet would have been five or six feet off the ground.
After speaking with appellant, Trooper Brill determined that there were no mechanical problems with appellant's vehicle. Appellant indicated he was traveling at a speed of between forty and forty-five miles per hour.3 Brill testified at trial that it would have taken appellant approximately one minute and twenty-five seconds to drive from his home to the site of the accident.
Appellant gave Brill permission to look through his phone, and Brill found that the phone had not been in use at the time of the collision. The phone did show that appellant had called 911 after the accident. Brill also searched appellant's car at the scene and found no bags, beverages, GPS or navigation devices, food, maps, or electronic devices such as an iPad. Appellant did not identify any obstructions that would have prevented him from seeing the motorcycle, and he provided no explanation why he would have been unable to see the motorcycle. Brill testified that he had no indication appellant was distracted while driving. Brill also stated that there are various causes of motorcycle accidents, one of which is "that the driver of the car just didn't see the motorcycle[.]"
Trooper Brill later returned to the accident scene and set up a three-foot cone on a ladder, representing Nelson's height as he sat on his motorcycle, to determine the visibility of the motorcycle from various vantage points. Brill testified that from the "dip" in the road 693 feet away from the accident site, he could clearly see the cone with no obstructions. He indicated that at a speed of forty-five miles per hour, it would have taken appellant about ten seconds to reach the cone from the dip in the road.
Brill acknowledged that appellant is five feet five inches tall and was driving a "low-seating car," so he would have had "less of a visual field" coming out of the dip. He stated that it was a little windy that day and that there was some debris and a few leaves blowing around. He also testified that the data recorder from appellant's car established that appellant was not weaving prior to the collision and that he was keeping a constant speed, both of which indicated that appellant was not distracted.
Sergeant Phillip Thomas of the Virginia State Police photographed appellant's car. He did not see any bags, food, drinks, electronic devices, or anything else that might have distracted appellant while he was driving.
Virginia State Police Sergeant Brent Coffey, a crash data recovery and retrieval technician and analyst, was able to obtain data from the Ford Fusion. Based on the recovered data, Coffey was able to determine that five seconds before the accident appellant's speed was "47.5 [miles per hour]. It's basically consistent. It drops down at two and a half seconds [before the accident] to 46.9.... [T]hen it goes back up to 47.5 consistently.
At impact it's 47.4 miles per hour." Based on this information, Coffey indicated that for at least half a second before impact, appellant took his foot off the accelerator. Given the limited data, Coffey could only determine that appellant used the brake at the time of impact. Based on the "concept of perception and reaction time," the "tables of Virginia," and the crash data, Coffey calculated that appellant perceived the motorcycle two seconds prior to impact.
Dr. Jonathan Flombaum testified for appellant and was recognized as an expert in the field of cognitive psychology, limited to his own research. Flombaum described for the jury the concept of "situational blindness," which is "the phenomenon of looking somewhere but failing ... to recognize or notice or process exactly what's there." He characterized the principle as "a scientific fact."
Dr. Flombaum testified that situational blindness is "more likely to occur when people are performing tasks that require engagement, that they're aware require engagement, but also that they have experience performing." Finally, Flombaum stated that "when it comes to driving we think that situational blindness is more likely to occur when people are driving on familiar roads at familiar times of day."
The jury convicted appellant of reckless driving. This appeal followed.
ANALYSIS
Appellant argues the evidence was insufficient to support his conviction for reckless driving.
"When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’ " Smith v. Commonwealth, 296 Va. 450, 460, 821 S.E.2d 543 (2018) (quoting Commonwealth v. Perkins, 295 Va. 323, 327, 812 S.E.2d 212 (2018) ). "In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Secret v. Commonwealth, 296 Va. 204, 228, 819 S.E.2d 234 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512, 808 S.E.2d 408 (2017) ). "Rather, the relevant question is, upon review of the evidence in the light most favorable to the prosecution, whether any rational trier of...
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Commonwealth v. Cady
...D. ARTHUR KELSEYIn this case, the Commonwealth appeals a split decision by a panel of the Court of Appeals, Cady v. Commonwealth , 72 Va. App. 393, 846 S.E.2d 30 (2020). The decision reversed a misdemeanor conviction based upon a jury verdict finding Mark Spencer Cady guilty of reckless dri......